Scope of the Directive

The first thing to examine is the scope of the Directive. Although the Directive’s horizontal application provides civil and criminal liability exemption from monetary compensation for almost all types of the substantive law rights,198 its application is limited to the matters related to information society service providers (ISSPs). What is the ISSPs, then?

Recital 17 and Art.2 of the ECD define the ISSPs as covering, by referring to Art.1(2) of Directive 98/48/EC,199 ‘any service normally provided for remuneration, at a distance,

by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a services’. The recipient

of the service is also explained as including ‘any natural or legal person who, for

professional ends or otherwise, uses an information society service, in particular purposes of seeking information or making it accessible’ in Art.2(d).200 _{The Directive} therefore covers a broad range of online services. Some of those activities are given in Recital 18 as follows: selling goods online and offering online information or search tools. Yet, television and radio broadcasting are explicitly excluded from the scope as ‘they are

not provided at individual request’.

Recital 18 also states that free services can fall within the scope of the ISSPs’ if the service represents an economic activity. This rule is actually a reflection of the principle stated in Art.57 of the Treaty on the Functioning of the European Union (TFEU)201 as the Article focuses on the economic nature of the activity in assessing the type of service. It was also established by case law that the economic nature standard should be considered

198 _{Except data and privacy protection with respect to the Art.5(b) of the Directive. For further explanation,}

See Chapter 2.

199 _{Council Directive (EC) 98/48 amending Directive 98/34/EC laying down a procedure for the provision} of information in the field of technical standards and regulations [1998] OJ L 217/21.

200 _{For detailed assessment, See EU Study on the Legal Analysis of a Single Market for the Information} Society (2009) Chapter 6.4.1.

broadly.202 _{That interpretation was analogically applied to the ISSPs by the CJEU in}

Sotiris Papasavvas v O Fileleftheros Dimosia Etairia Ltd and Others203 _{and so it was}

confirmed. In brief, it was held that a service provider should not necessarily be paid directly by those who benefited from its services. The economic activity standard can still be met if the service provider is financed by advertisements on its website. This clarification is very important in terms of the latest technologies developed such as streaming websites.

Later, in another case, the CJEU was asked to decide ‘whether a professional person who,

in the course of business, operates a free Wi-Fi204 network, is to be regarded of a service consisting in provision of access to a communication network, within the meaning of Article 12(1) of Directive 2000/31’.205 For the first part of the question, the CJEU held

that provision of free Wi-Fi ‘constitutes an “information society service” … where the

activity is performed by the service provider in question for the purposes of advertising the goods sold or services supplied by that service provider’.206 In that sense, it can be

concluded that a broad range of economic activities would satisfy the remuneration requirement under Art.2(a) although this would be subject to a case-by-case analysis. However, what is significant is that the Directive does not make an exclusive referral to any Web 2.0 user-generated technology providers such as auction sites, blogs, video sharing sites, paid referencing system and linking providers. Accordingly, it does not establish whether they are the ISSPs under the Directive. This is not particularly surprising given that the Directive was enacted before those technologies were developed. Fortunately, the CJEU’s case law sheds light on the issue for some Web 2.0 technologies. In Google France207 one of the questions before the CJEU was whether the paid referencing system,208 _{AdWords offered by Google was an ISSP under the ECD. It was}

202_{Case C-484/14 Tobias Mc Fadden v Sony Music Entertainment Germany GmbH (CJEU 16 March 2016),} Opinion of AG Szpunar, para 38.

203 _{Case C-291/13 Sotiris Papasavvas v O Fileleftheros Dimosia Etairia Ltd and Others (CJEU 11} September 2014).

204 _{‘Wi-Fi or WiFi is a technology that allows electronic devices to connect to a wireless LAN (WLAN)}

network..’ see <https://en.wikipedia.org/wiki/Wi-Fi>

205 _{Case C-484/14 Tobias Mc Fadden v Sony Music Entertainment Germany GmbH (CJEU 16 March 2016),} Opinion of AG Szpunar, para 34.

206 _{C-484/14 Tobias Mc Fadden v Sony Music Entertainment Germany GmbH (CJEU 15 September 2016),} paras 34-43.

207 _{Joined Cases C-236/06 -C-236/08 Google France [2010] ECR I-02417, para 120.}

208 _{Ibid, para 23, ‘That service enables any economic operator, by means of the reservation of one or more}

keywords, to obtain the placing, in the event of a correspondence between one or more of those words and that/those entered as a request in the search engine by an internet user, of an advertising link to its site.

decided that the paid referencing service at stake, which enabled users to purchase keywords provided by the system, was an ISSP as it qualified under the standards stated under Art.2(a).209 Following this, in L’Oréal v Ebay,210 an online auction site, which provided a platform to third parties to upload listings for selling and buying211 and in

SABAM v Netlog212 an online social networking platform, were both held to be ISSPs. Considering these, then the ISSP notion appears to embrace the new Web 2.0 services bearing in mind there is still ambiguity over some types of services offered by intermediaries such as search engines. Edwards argued that even Google France decision on keywords ‘(…)does conclusively not settle the matter of whether Google in its role as

a cot-free provider of search links qualifies as an ISSP’. 213

To conclude, the ECD considers a wide range of online actors as ISSPs provided that the activities at issue qualify under the standards stated in Art.2(a) and underlines that the

‘normally provided for remuneration’ and ‘by electronic means’ are the key standards. It

should be mentioned that the ECD employs the term ISP interchangeably with the ISSPs, especially in the further provisions, such as under Section 4. Finally, it must be reminded that within this thesis the term Internet intermediaries is employed instead of the terms used in the ECD.

That advertising link appears under the heading ‘sponsored links’, which is displayed either on the right- hand side of the screen, to the right of the natural results, or on the upper part of the screen, above the natural results.’

209 _{Ibid, para 110.}

210 _{Case C-324/09 L’Oréal v Ebay [2011] ECR I-06011, para. 88.}

211 _{In the case, this main service of Ebay was differed from the Ebay’s selection of the keywords for the} advertisement of the listings. It was also decided that this selection of the keywords was also different from the Google’s Adwords service since ‘ebay is not offering itself the goods for sale.’ Case C-324/09 L’Oréal

v Ebay [2011] ECR I-06011, para 89.

212 _{Case C-360/10 SABAM v Netlog (16 February 2012), para 27 ‘the owner of an online social networking}

platform- such as Netlog- stores information provided by the users of that platform, relating to their profile, on its servers, and that it is thus a hosting service provider within the meaning of Article 14 of Directive 2000/31.’

213 _{Edwards, ‘Role and Responsibility of Internet Intermediaries in the Field of Copyrights and Related} Rights’ (2011), 9. In contrast Peguera, more generally, argued that the hosting intermediary immunity provision is applicable for the new generation technologies that were not anticipated when the rules enacted. See Miquel Peguera, ‘The DMCA Safe Harbours and their European Counterparts: A Comparative Analysis of some Common Problems’ (2009) 32 Columbia Journal of Law& Arts 481, 512.